Access to justice in clinical negligence claims
“Civil justice is unaffordable for most people “ so says Lord Thomas of Cwmgiedd , the Lord Chief Justice in his more recent annual report. For those of dealing with the court system on a daily basis either in the judiciary or as solicitors and barristers it is fair to say that the system is not entirely fit for purpose.
In 2013 a change in philosophy meant that completely innocent victims of a clinical negligence issue became liable for some or all of their costs. It has always been the case that a claimant may be liable for costs which have been incurred unnecessarily such as seeking numerous medical reports, for example. All solicitors are used to the possibility and able to advise their clients about unreasonable costs being incurred or not being recovered from the other side if successful.
Being responsible for some of the costs because a person has chosen to make a claim as a result an injury they did not want seems unfair. The vast majority of claimants in clinical negligence cases are completely innocent victims. They have gone into hospital or relied upon their G.P. and for whatever reason something has gone wrong leaving them injured. Why should they lose what little (and it is little in this jurisdiction) legitimate compensation that they may get just because they take a legal claim?
Add to that the issue of proportionality. Everybody accepts the idea that a legal case ideally should not cost so much more than the value of the claim itself. In principle this is a fine idea. In clinical negligence, it doesn’t work in practice. A clinical negligence case often costs more than the value of the claim because of the number of experts required, the complexity of the issues or the sheer volume of records.
However there are ways to cut down those costs. The NHSLA and the defence organisations could admit fault at the outset in appropriate cases and to try and deal in a co-operative manner to settle the claim. Often disproportionate costs are incurred as a result of the failure of the NHSLA or the defence unions to co-operate at an early stage or to admit fault.
This is the reality of life in these types of claims. It is not however the fault of the person who has suffered the clinical negligence. They are neither responsible for the negligent act which had caused them harm or the reluctance of the other side to deal with their claim quickly and fairly.
In addition more recent cases indicate that even if a step done in a legal claim is required, this does not mean that the other side will be responsible for the cost. A step may be entirely necessary to win the case, but the person claiming could still have to pay for it.
It is no wonder that solicitors cannot take cases forward where the value may be small, leaving an increasing numbers of litigants in person.
There is no longer legal aid save for one small group of cases. People taking claims forward lose some compensation in legal costs and if they are in the majority of clinical negligence cases where the costs could outweigh the compensation they can lose a significant proportion through absilutely no fault of their own.
The justice system is not fit for purpose. The justice system should not be about those who are extraordinarily wealthy or those who are so damaged that taking a claim forward is a possibility. It should represent all people, who might have some income but certainly not sufficient for the legal process, who have been injured to some degree but have been able to carry on their life. It should represent all.
The report from the Lord Chief Justice confirms what I suspect most claimant lawyers consider to be the problems with the court system and the issue of costs. If justice is to be for all, there has to be a fairer system of cost management so that innocent victims do not lose compensation paying legal costs for a claim they did not seek out and would rather have avoided.